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Diving into quicksand: George Brandis and the Jerusalem question

William Maley

Tourists visit the holy site known to Jews as the Temple Mount, and to Muslims as Haram al-Sharif, or Noble Sanctuary, in Jerusalem.

Of all the political issues in the modern Middle East, the status of Jerusalem, a city of fundamental religious significance to three major faiths, is probably the most sensitive. This has been the case for decades. In the late 1940s, it was so obviously explosive that the partition plan for Palestine contained in United Nations General Assembly resolution 181(II) of November 29, 1947, proposed that Jerusalem should be a ''corpus separatum'' under its own ''Special International Regime''.

After Israel’s purported declaration of Jerusalem in 1980 as the ''complete and united'' capital of Israel, the United Nations Security Council in resolution 478 of August 20, 1980, censured ''in the strongest terms the enactment by Israel of the 'basic law'' on Jerusalem and the refusal to comply with relevant Security Council resolutions''; affirmed that the enactment constituted ''a violation of international law''; determined that ''all legislative and administrative measures and actions taken by Israel, the occupying Power, which have altered or purport to alter the character and status of the Holy City of Jerusalem are null and void and must be rescinded forthwith''; affirmed that Israel’s action constituted ''a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East''; decided ''not to recognise the 'basic law' and such other actions by Israel that, as a result of this law, seek to alter the character and status of Jerusalem''; and called upon ''All Member States'' to accept this decision.

In 2004, the International Court of Justice in its advisory opinion on the ''Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory'' authoritatively affirmed in paragraph 78 that the territories occupied by Israel in 1967, ''including East Jerusalem'', remained ''occupied territories''.

Most recently, United Nations General Assembly resolution 68/16 of November 26, 2013, reiterated the assembly’s determination ''that any actions taken by Israel, the occupying Power, to impose its laws, jurisdiction and administration on the Holy City of Jerusalem are illegal and therefore null and void and have no validity whatsoever''.

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Into this sensitive world Attorney-General Senator George Brandis has now chosen to blunder, irresistibly reminding one of the famous description of a former US secretary of state John Foster Dulles as the only bull who brought his own china shop with him. In early June, apparently with a view to making sure that there were no reds under his bed, he made the bizarre claim that the term ''occupied Palestinian territories'' was ''used by a lot of communists'', and in a Senate estimates hearing, he chose to describe references to ''occupied East Jerusalem'' as ''neither appropriate nor useful'', preferring the term ''disputed''.

Unsurprisingly, the spaghetti hit the fan almost immediately. The Abbott Government was reportedly faced with a protest from 18 envoys from Middle East and Muslim countries querying the new language. The only significant figure to welcome the Senator’s language was Israeli Prime Minister Netanyahu – not surprisingly, since the shift in terminology was one that Israel had long been seeking to promote.

During the Senate estimates hearing, Senator Brandis stated ''I do not profess to be a specialist in public international law'', and it is unlikely that many specialists will step forward to challenge his self-assessment. One might have thought that the Senator would have learned some caution after the International Court of Justice humiliated him on March 3, 2014, by issuing provisional measures against Australia at the request of Timor-Leste after Senator Brandis had unwisely authorised an ASIO raid on the office of Timor-Leste’s Australia-based lawyer. But apparently not. His views on the legal appropriateness of the term ''occupied'' have already been torn into tiny shreds by Professor Ben Saul of Sydney University, and are unlikely to win much support.

It is, however, the political dimensions of this case that are the most intriguing. While the Abbott government has leaned towards Israel more than any of its predecessors, Prime Minister Abbott himself engaged in some remarkable contortions to avoid the suggestion that any such tilt was intended over Jerusalem, arguing that ''there has been no change in policy—simply a terminological clarification''. Of course, where Jerusalem is concerned, any abandonment of the terminology of occupation will be universally and accurately viewed as a change of policy, something Mr Abbott surely knows. Yet several factors might explain his caution. One possibility, reported by journalist Mark Kenny, is that Senator Brandis was ''freelancing'' when he first decided to set out his views, and that they were not approved by either Cabinet or the Prime Minister. And it is inconceivable that professional diplomats in the Department of Foreign Affairs and Trade would have advised the government to change its language in this way. A more serious problem for the Prime Minister, however, is the position of The Nationals. Deputy Prime Minister Warren Truss and Agriculture Minister Barnaby Joyce must be beside themselves at the Senator’s behaviour, since it gives rise to the risk of a boycott by Arab and Muslim states of Australia’s agriculture and farm export industries.

We may never know exactly what prompted the Senator’s rush of blood, but one possibility is that it arose from another policy he has been pursuing, namely the repeal of section 18C of the Racial Discrimination Act. It is no secret that this policy, seemingly designed to appease a right-wing journalist, has been very poorly received by members of the Jewish community who were understandably alarmed by the Senator’s ill-considered defence of the right to be a bigot. Perhaps the Senator was attempting nothing more than to win back the support of a pressure group he had managed very effectively to alienate. But if so, he would have done better to reflect on what the wider ramifications of his statements might be. And perhaps it is time for Prime Minister Abbott to think about whether in his own interest he might be able to find another Attorney-General, with smaller bookcases but more common sense.

Professor William Maley is director of the Asia-Pacific College of Diplomacy at the Australian National University.